142A
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
THE CASE CONCERNING THE SECESSION AND ANNEXATION
OF EAST AGNOSTICA
THE FEDERAL REPUBLIC OF AGNOSTICA
APPLICANT
v.
THE REPUBLIC OF REVERENTIA
RESPONDENT
MEMORIAL FOR THE APPLICANT
THE 2015 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT
COMPETITION
i
TABLE OF CONTENTS
COMPETITION .......................................................................................................................... i
INDEX OF AUTHORITIES ...................................................................................................... v
STATEMENT OF JURISDICTION ....................................................................................... xvi
QUESTIONS PRESENTED .................................................................................................. xvii
STATEMENT OF FACTS .................................................................................................... xviii
SUMMARY OF PLEADINGS ............................................................................................. xxiii
PLEADINGS .............................................................................................................................. 1
I. Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s
territorial integrity, the principle of non-intervention, and the United Nations Charter
generally ................................................................................................................................. 1
A. Reverentia`s support for the referendum violated the principle of territorial integrity .. 1
1. The adoption of the Crisis Resolution by Reverentia imperils the territorial integrity
of Agnostica ................................................................................................................... 2
2. Reverentia`s amassment of troops near Agnostica`s border constitutes a threat of
force and therefore infringes the territorial integrity of Agnostica ................................ 3
3. The right to self-determination could not justify the encouragement of the
referendum...................................................................................................................... 5
B. Reverentia`s encouragement of the referendum violates the principle of nonintervention ......................................................................................................................... 5
1. The support of the secession movement in East Agnostica violates the principle of
non-intervention ............................................................................................................. 6
2. Reverentia intervened in the domestic affairs of another State ................................. 7
C. Reverentia`s encouragement of the referendum violates the Charter in general ........... 8
1. The violation of the abovementioned principles entails the violation of the Charter 8
2. Reverentia’s actions contravene the purpose and the object of the Charter ............... 9
II. The purported secession and subsequent annexation of East Agnostica are illegal and
without effect; and therefore, East Agnostica remains part of the territory of Agnostica ...... 9
A. The secession of East Agnostica is illegal under international law ............................... 9
1. The principle of self-determination cannot justify the secession of East Agnostica .. 9
i) The Agnorevs in Agnostica do not fall under the definition of a “people” .......... 10
ii) The Agnorevs may exercise internal self-determination ..................................... 12
iii) In any event, the Agnorevs do not have a right of external self-determination.. 13
2. The secession was conducted with the help of Reverentia ..................................... 14
3. Remedial secession cannot justify the conducted unilateral secession .................... 15
i) The doctrine of remedial secession is not part of customary international law .... 15
ii
ii) Alternatively, the requirements for remedial secession are not met .................... 17
B. Reverentia’s annexation of East Agnostica violates international law ........................ 18
1. Annexation is illegal under international law........................................................... 18
2. Resulting from the illegality of the secession, the annexation is also illegal ........... 18
3. The decision of the so-called Agnorev’s Parliament has no legal force .................. 19
4. In any event, the uti possidetis principle renders East Agnostica’s secession and
annexation illegal ......................................................................................................... 19
III. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,
Agnostica did not breach the Convention ............................................................................. 20
A. Agnostica has lawfully terminated the Marthite Convention based on the general rules
for termination................................................................................................................... 21
1. Agnostica was entitled to terminate the Convention on the basis of a material breach
...................................................................................................................................... 21
2. Alternatively, Agnostica terminated the treaty in the light of fundamentally changed
circumstances ............................................................................................................... 23
i) it must affect circumstances existing at the time of the conclusion of the treaty
which have not been foreseen by the parties at the moment of conclusion; ............ 24
ii) The change must be ‘fundamental’ and the effect of the change must radically
transform the extent of the obligations to be performed .......................................... 24
iii) the circumstances’ existence must have constituted “an essential basis of the
parties consent to be bound by the treaty” ............................................................... 25
B. Alternatively, the Marthite Convention ceased to be in effect by 2 April 2012 since
Reverentia’s consent is invalidated on the ground of error .............................................. 26
C. Agnotica lawfully declared the Marthite Convention to be out of effect ..................... 28
D. In any event, Agnostica did not breach that Convention ............................................. 29
IV. Reverentia’s removal of the software at the Marthite extraction facilities violated
international law ................................................................................................................... 32
A. Reverentia deprived Agnostica of its property. ............................................................ 32
1. Agnostica is the exclusive owner of the facilities under the Marthite Convention . 32
2. The title to the software has been lawfully transferred to Agnostica as well ........... 33
B. Reverentia has no right to take countermeasures because the Marthite Convention was
not in effect after April 2012............................................................................................. 34
C. Countermeasures are not applicable since the conduct of Agnostica falls under the
regime of Treaty Law, not the Law of State responsibility .............................................. 34
D. Alternatively, even if Reverentia can rely on countermeasures, its conditions are not
satisfied ............................................................................................................................. 35
1. The procedural requirements were not observed ..................................................... 36
2. The countermeasure was not proportionate.............................................................. 36
iii
PRAYER FOR RELIEF ........................................................................................................... 39
INDEX OF AUTHORITIES
iv
TREATIES AND CONVENTIONS
Articles on Responsibility of States for Internationally Wrongful Acts,
Y.B.I.L.C., vol. II (Part Two) (2001)
14, 30, 34, 35,
36, 37, 38
Charter of the United Nations, 1 U.N.T.S. XVI (1945)
1, 4, 5, 8, 9, 10
Convention on Rights and Duties of States, Montevideo, 165 L.N.T.S. 19
(1933)
8
International Covenant on Civil and Political Rights, 16 December 1966,
999 U.N.T.S. 171
10
Statute of the International Court of Justice, 1055, 33 U.N.T.S. 993 (1945)
21
The Final Act of the Conference on Security and Cooperation in Europe, 14
I.L.M. 1292 (1975)
1, 6
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 33 (1969)
20, 21, 22, 24,
27, 28, 35
UNITED NATIONS DOCUMENTS
Commentary ILC Draft ASR, Y.B.I.L.C., II, (1975)
30, 35
Convention on the Jurisdictional Immunities of States and Their Property, 32
U.N. Doc. A/RES/59/38 , (2004)
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of
the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (1970)
Declaration on the Granting of Independence to Colonial Countries and
Peoples, G.A. Res. 1514 (XV), U.N. Doc. A/4684, 66 (1960)
1, 2, 5, 6, 7, 9,
10
5, 14
Declaration on the Inadmissibility of Intervention and Interference in the
Internal Affairs of States, G.A. Res. 36/103, U.N. Doc. A/RES/36/103, 6
Annex, (II)(a) (1981)
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
States and the Protection of Their Independence and Sovereignty, G.A. Res.
2131 (XX), U.N. Doc. A/RES/20/2131, (1965)
6, 11
29
v
G.A. Res 1803, U.N. Doc. A/RES/1803 (1962)
12
G.A. Res. 1723 (XVI), U.N. Doc. A/Res/1723/16 (1961)
29
G.A. Res. 3201 (S-VI), U.N. Doc. A/RES/S-6/3201 (1974)
2
G.A. Res. 3236, U.N. Doc. A/RES/3236 (XXIX) (1974)
29
G.A. Res. 3281, U.N. Doc. A/RES/29/3281 (1974)
5
G.A. Res. 37/42, U.N. Doc. A/Res/37/42 (1982)
5
G.A. Res. 38/16, U.N. Doc. A/38/47 (1983)
12
G.A. Res. 441 (V), U.N. Doc. A/Res/441/5 (1950)
7
G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997)
7
G.A. Res. 58/189, U.N. Doc. S/RES/58/189 (2003)
5
G.A. Res. 61/150, U.N. Doc. A/Res/61/150 (2006)
5
G.A. Res. 62/144, U.N. Doc. A/Res/62/144 (2007)
2
G.A. Res. 31/61, U.N. Doc. A/RES/31/61 (1976)
2
G.A. Res. 34/44, U.N. Doc. A/RES/34/44 (1979)
5
G.A. Res. 63/163,U.N. Doc. A/Res/63/163 (2009)
12
General Recommendation 21, The right to self-determination, U.N. Doc.
A/51/18, (1996).
20
ILC Law of the Treaties Final Draft with Commenataries, Commentary to
37
Art 45; Y.B.I. L.C., vol. II, U.N. Doc. A/CN.4/SER.A/Add.l (1966)
ILC Report on the work of its fifty-third session (23 April–1 June and 2
July–10 August 2001), U.N. Doc. A/56/10, Y.B.I.L.C, Volume II (Part Two)
36
(2001)
ILC Report on the work of its thirty-first session 14 May-3 August 1979,
Y.B.I.L.C. vol.II (Part Two) (1979)
23
ILC, Guide to Practice on Reservations to Treaties (2011), Y.B.I.L.C.,
2011, vol. II, Part Two. Draft Guideline 3.1.5.1.
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples, G.A. Res. U.N. Doc. A/RES/2105 (XX)
(1965)
2
37
Materials on the responsibility of states for internationally wrongful acts, U.
N. L.S., ST/LEG/SER B/25, (2012).
6
vi
Peaceful and Neighbourly Relations among States, G.A. Res. 1236 (XII),
U.N. Doc. A/RES/12/1236 (1957)
4
Repertoire of the Practice of the Security Council, Suppl. 1964-1965, XVI,
238 S. (Sales No. 1968. VII. 1). Doc. ST/PSCA/l/Add. 4., 202 (1968)
Reports of the International Law Commission on the second part of its 20
seventeenth session and on its eighteenth session, Document A/6309/Rev.l
15
S.C. Res. 1023, U.N. Doc. S/Res/1023, preamble (1995)
7
S.C. Res. 1271, U.N. Doc. S/RES/1271 (1999)
16
S.C. Res. 1808, U.N. Doc. S/RES/1808 (2008)
15
S.C. Res. 216, U.N. Doc. S/RES/216 (1965)
15
S.C. Res. 217, U.N. Doc. S/RES/217 (1965)
4
S.C. Res. 661, U.N. Doc. S/RES/661 (1990)
18
S.C. Res. 662, U.N. Doc. S/RES/662 (1990)
12
S.C. Res. 724, U.N. Doc. S/Res/724 (1991)
15
S.C. Res. 787, U.N. Doc. S/RES/787 (1992)
15
S.C. Res. 815, U.N. Doc. S/Res/815, (1993)
2
S.C. Res. 906, U.N. Doc. S/RES/906 (1994)
2
S.C. Res. 934, U.N. Doc. S/RES/934 (1994)
2
S.C. Res. 937, U.N. Doc. S/RES/937 (1994)
3
S.C. Res. 949, U.N. Doc. S/RES/949 (1994)
17
S.C. Res. 1244, U.N. Doc. S/RES/1244 (1999)
2
S.C. Res. 896, U.N. Doc. S/RES/896 (1994)
35
Special Rapporteur James Crawford, Third report on State responsibility
A/CN.4/SER.A/2000/Add.1 (Part 1)
Special Rapporteur Sir Humphrey Waldock, Second Report on Law of 21, 25
Treaties, Y.B.I.L.C., vol.II (Part One) (1963)
5
Thürer, D & T. Burri, Self-determination, Oxford Publ. I`tnl L., MPEPIL,
(2008).
U.N. S.C.O.R., 49th Sess., 3438th Meeting, U.N. Doc. S/PV.3438, (1994)
4
13
vii
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2, (2000)
15
OTHER INTERNATIONAL INSTRUMENTS
Declaration on the “Guidelines on the Recognition of New States in Eastern
Europe and in the Soviet Union”, European Community, 31 I.L.M. 1485
12
(1992)
Declaration on the Situation in Yugoslavia, Extraordinary European Political
Cooperation Ministerial Meeting, EC Press Release 61/91 (1991)
European Commission for Democracy, CDL-AD (2014) 004, Opinion no.
763/2014, 98th Plenary Session
Mexico – Tax Measures on Soft Drinks and Other Beverages, Report of the
Panel, WTO Doc. WT/DS308/R, (2005)
1
35
12
Report of the Independent International Fact-Finding Mission on the
Conflict in Georgia, 2008/901/CFSP, Vol. II, 147 (2009)
Report of the Secretary-General on the Situation in the Federal Islamic
Republic of the Comoros, Decisions and Resolutions of 68th Ordinary
Session, O.A.U. CM/Dec.405, Doc. CM/2062 (LXVIII) (1998)
2
18
Statement on the reported holding of local elections in Crimea, EU Doc. No.
140915/01
5, 11
The Arbitration Commission of the European on the former Yugoslavia,
Opinion No. 2, 31 I.L.M. 1497 (1992)
34
The Hong Kong Law Reform Commission Report, Contracts For The
Supply Of Goods, LC Paper No. CB(2)222/09-10 (2009)
10
Third Periodic Reports of States Parties due in 1991, Addendum, Report
Submitted by Shri Lanka, 17 July 1944, CCRP/C/70/Add.6, (1944).
Vienna Declaration of the CSCE Parliamentary Assemble, PA(94)7, (1994).
12
1, 11,14, 13,
15, 16, 19
I.C.J. & P.C.I.J. CASES
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J.
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, 2007 I.C.J.
17
3, 7
Armed Activities on the Territory of the Congo (Demovratic Republic of the
Congo v. Uganda), Judgment, 2005 I.C.J.
Armed Activities on the Territory of the Congo (New Application: 2002)
viii
23, 28, 29
(Democratic Republic of the Congo v.Rwanda), Jurisdiction and
Admissibility, I.C.J.
16, 28
Asylum (Colombia/Peru), Judgment, 1950 I.C.J.
22
Avena and other Mexican nationals (Mexico v. United States of America),
Judgment, 2009 I.C.J.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France), Judgment, 2008 I.C.J.
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J.
Corfu Channel (Great Britain v. Albania), Merits, Judgment, 1949, I.C.J.
East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. 90
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, 1974 I.C.J.
22
16
4
10
24
24
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
1974 I.C.J.
Free Zones of Upper Savoy and the District of Gex, Merits, 1932, P.C.I.J.,
Series A/B, No. 46
Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J.
Frontier Dispute (Burkina Faso/Niger), Judgment, 2013 I.C.J.
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 I.C.J.
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1997
I.C.J.
Jurisdictional Immunities of the State (Germany v. Italy: Greece
intervining), Judgment, 2012 I.C.J.
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J.
LaGrand (Germany v. United States of America) 2001, I.C.J.
25
20
20
20
21, 22, 23, 24,
26, 28, 30, 31,
35, 36, 37, 38
16, 32
22
22
19
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), Judgment, 1992 I.C.J.
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution
276, Advisory Opinion, 1971 I.C.J.
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 2004 I.C.J.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
ix
10, 13, 14,
21,22
10, 18
4, 16, 22, 28
I.C.J.
27
Mavrommatis Jerusalem Concessions, 1925, P.C.I.J., Series A -No 5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
U.S.), Merits, 1986 I.C.J.
1, 3, 4, 6, 7, 8,
16, 20, 35
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
U.S.), Preliminary Objections, 1984 I.C.J.
28
2, 7
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923
P.C.I.J., Ser. B, No. 4
North Sea Continental Shelf cases (Federal Republic of Germany v.
Denmark), Judgment, 1969 I.C.J.
Nuclear Tests (Australia v. France), Judgment, 1974, I.C.J.
Nuclear Tests (New Zealand v. France), Judgment, 1974, I.C.J.
Diversion of Water from the Meuse, P.C.I.J. Ser A/B No 70, 50 (1937)
16
28
28
21
22, 28
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010
I.C.J
Request for interpretation of the Judgment of 11 June 1998 in the case
concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections 1998, I.C.J.
28
Reservations to the Convention on Genocide, Advisory Opinion, I.C.J.
23
Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. 1962
27
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment, 2007 I.C.J.
20
10, 13, 14, 19
Western Sahara, Advisory Opinion, 1975 I.C.J.
OTHER INTERNATIONAL CASES
33
Advent Systems Ltd v Unisys Corp, 925 F. 2d 670 at II; and St Albans DC v
International Computers [1997] F.S.R. 251
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas,
Inc. v. the United Mexican States, Judgment, ICSID Tribunal, Case No.
ARB(AF)/04/05, (2007).
37
Case concerning the Air Service Agreement of 27 March 1946 between the
United States of America and France, United Nations, R.I.A.A., vol. XVIII,
(1978)
35, 36
x
Case Concerning the Arbitral Award of 31 July 1989, (Guinea-Bissau v.
Senegal) 1991
22
Cyprus v. Turkey, Judgment, E.Ct.H.R., 25781/94, (2001)
18
Eng St Albans City and District Council v International Computers Ltd
[1996] 4 All ER 481 (QB)
Guyana v Suriname Arbitration, Award, 47 I.L.M.
33
Katangese Peoples’ Congress v. Zaire, A.C.H.P.R., Comm. No. 75/92, 256 3
(1995).
13
Naulilaa (Responsibility of Germany for damage caused in the Portuguese
colonies in the south of Africa), UNRIAA, vol. II, 1011 (1928)
Racke GmbH & Co. v. Hauptzollamt Mainz, E.C.R., I-3655, Case C-162/96
(1998)
37
28, 29
Rainbow Warrior case (New Zealand, France), Award of 30 April 1990,
U.N.R.I.A.A. vol. XX 217 (1990).
Report on the Situation of a Segment of the Nicaraguan Population of 36
Miskito Origin, I.A.C.H.R., OAS, OEA/Ser.L/V.II.62, Doc. 10, Eev. 3,
(1983).
Southwark LBC v IBM UK Ltd (2011) E.W.H.C., 549, (TCC)
United States—Definitive Safeguard Measures on Imports of Circular
Welded Carbon Quality Line Pipe from Korea, WTO Appellate Body
Report, WT/DS202/AB/R, (2002)
United States—Subsidies on Upland Cotton, Recourse to Arbitration by the
United States under Article 22.6 of the DSU and Article 4.11 of the SCM
Agreement, WTO, Case No. WT/DS267/ARB/1, (2009)
United States—Transitional Safeguard Measure on Combed Cotton Yarn
from Pakistan, WTO Appellate Body, WT/DS192/AB/R, (2001).
NATIONAL CASES
11
33
37
37
37
Federal Court of Justice/Bundesgerichtshof, Germany, (8 ZR 306/95) (1996)
Princen Automatisering Oss B.V. v. Internationale Container Transport
GmbH, [1996] Court of Appeal, (770/95/HE), 72(The Netherlands);
33
34
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217
12
South Central Bell Telephone Co v Sidney J Barthelemy, Supreme Court of
Louisiana , 643 So. 2d 1240 at 1246 (La. 10/17/94)
xi
Tartastan Sovereignty case, [1992] Constitutional Court of the Russian 33
Federation, P-R3-1, (1992).
13
NATIONAL LEGISLATION
Austrian Civil Code
33
Czech Republic Civil Code
33
German Civil Code
33
Greek Civil Code
33
Netherlands Civil Code
33
Turkey Civil code
33
BOOKS AND TREATISES
BENJAMIN’S SALE OF GOODS, FIRST SUPPLEMENT TO THE 8TH EDITION,
BRIDGE M., 14 (2012)
33
BROWNLIE, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 447 (7TH ED.
2008); SHAW, M., INTERNATIONAL LAW, 1148 (6TH ED. 2008)
6
BUCHANAN, A., JUSTICE, LEGITIMACY, AND SELF-DETERMINATION, 355
(2007)
18
COPPIETERS, B. & RICHARD SAKWA, CONTEXTUALIZING SECESSION:
NORMATIVE STUDIES IN COMPARATIVE PERSPECTIVE, (2003)
CRAWFORD, J., THE CREATION OF STATES IN INTERNATIONAL LAW, 415 (2
Ed. 2006)
18
nd
11, 12, 15, 16,
35
DÖRR, O., SCHMALENBACH, K., VIENNA CONVENTION ON THE LAW OF
TREATIES, A COMMENTARY (2012)
ELAGAB O. Y.THE LEGALITY
INTERNATIONAL LAW (1988)
OF
NON-FORCIBLE COUNTER-MEASURES
21
IN
35
EVANS M. INTERNATIONAL LAW 197 (2010)
35
GOODE R. M., COMMERCIAL LAW 197 (3RD ED. 2004)
HACHEM, P., KEE, CH., GLOBAL SALES AND CONTRACT LAW, (2012)
34
33
HIGGINS, R., PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE
USE IT, 124 (1994)
JENNINGS AND WATTS (EDS), OPPENHEIM’S INTERNATIONAL LAW, VOL. 1,
535 (9TH ED.) (2008)
xii
11
6, 19, 21, 22
MUSGRAVE, T., SELF-DETERMINATION AND NATIONAL MINORITIES, 247
(2000)
5
RAIČ, D., STATEHOOD AND
THE LAW OF SELF-DETERMINATION,
(2002)
17
SIMMA, B. (ED) THE CARTER OF THE UNITED NATIONS: A COMMENTARY, (3
ed. 2012)
rd
1, 7, 9
STÜRCHLER, N., THE THREAT OF FORCE IN INTERNATIONAL LAW, (2007)
VERHOEVEN J., THE LAW OF RESPONSIBILITY AND THE LAW OF TREATIES IN 3
JAMES CRAWFORD ET AL. (2010)
34
VILLIGER, M., COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE
21, 27
LAW OF THE TREATIES 545 (2009)
ARTICLES
Anderson G, Secession in International Law and Relations: What Are We
Talking About?, Loy. L.A. Int'l & Comp. L. Rev. (2013)
Aust, A., Treaties, Termination, M.P.E.P.I.L. , (2006).
Comment, The Use of Nonviolent Coercion: A Study in Legality under
Article 2(4) of the Charter of the United Nations, 122 U. PA.L. Rev., 983,
986 (1974)
Crawford, J., Olleson, S., The Exception of Non-Performance: Links
between the Law of Treaties and the Law of State Responsibility (2001)
A.Y.I.L.
17
22
8
35
de Luca, A., Soviet- American Politics and the Turkish Straits, 92 Political
Sci. Q., Vol. 92, (1977)
Green S., Saidov D., Software as Goods, J. Bus. L. 161-181 (2007)
Hilpold, P., The Kosovo Case and International Law: Looking for
Applicable Theories, CHINESE J. INT`L L.,Vol. 8, 46, 55 (2009)
4
34
12, 13
Quane, H., The United Nations and the Evolving Right to Selfdetermination, 47 Int'L & Comp. L.Q. (1998)
13
Roscini, M., Threats of Armed Force and Contemporary International Law,
54 Neth. Int’L L. Rev. (2007)
Scharf, M., Earned Sovereignty: Juridical Underpinnings, DENV. J. INT’L
L. & POL’Y (2003)
Vidmar, J., South Sudan and the International Legal Framework Governing
the Emergence and Delimitation of New States, TEXAS J. INT’L L., Vol.
xiii
3
18
18
47, No. 3, (2012)
Wilmshurt, E., The Chantam House Principles of International Law on the
Use of Force by States in Self-Defense, Int'l & Comp. L.Q., Vol. 55, No. 4,
(2006)
3
MISCELLANEOUS
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999
I.C.J.,Declaration of Judge Higgins
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J., Judge
Fleischhauer Dissenting Оpinion
Åaland Island, Report by the Commission of Rapporteurs, League of
Nations Council Document B7 21/68/106, 318 (1921)
The position of States as Indonesia, India, Pakistan, Sri Lanka and Thailand,
ratifying the ICCPR available at
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg
_no=iv-4&lang=en
United States—Import Measures on Certain Products From the European
Communities, WTO Panel Report, WT/DS165/R, (2000)
27
27
11
11
37
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Serbia.
3
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J.,
Statement by the Permanent Representative of the Republic of Azerbaijan to
the United Nations, Oral Proceedings.
10
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Argentina
17
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, United Kingdom
17
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Republic of Azerbaijan
17
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Republic of Cyprus
17
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
17
xiv
Statement, State of Bolivia
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Separate
Opinion of Judge Yusuf
11
North Sea Continental Shelf (Federal Republic of Germany v. Netherlands),
Judge Jessup Separate Opinion 1969, I.C.J.
29
xv
STATEMENT OF JURISDICTION
The Federal Republic of Agnostica [“Agnostica/Applicant”] and the State of Reverentia
[“Reverentia/Respondent”] hereby submit the present dispute concerning the secession and
annexation of East Agnostica to the International Court of Justice [“The Court”] by a Special
Agreement, signed in the Hague on the second day of September in the year two thousand and
fourteen, pursuant to Article 40(1) of the Statute of the International Court of Justice. The
parties have accepted the jurisdiction of the Court in accordance with Article 36(1) of the
Statute of the Court. Each party shall accept the judgment of the Court as final and binding
and shall execute it in good faith.
xvi
QUESTIONS PRESENTED
I.
Whether Reverentia’s encouragement of East Agnostica’s referendum violated
Agnostica’s territorial integrity, the principle of non-intervention, and the United
Nations Charter generally;
II.
Whether the purported secession and subsequent annexation of East Agnostica are
illegal and without effect, and whether East Agnostica remains part of the territory of
the Federal Republic of Agnostica;
III.
Whether the Marthite Convention ceased to be in effect as of 2 April 2012 and,
whether Agnostica breached the Convention;
IV.
Whether Reverentia’s removal of the software from the Marthite extraction facilities
violated international law.
xvii
STATEMENT OF FACTS
BACKGROUND
The Reverentians and the Agnosticans were two ethnic groups. In 18th century, their
lands are administered into two colonies, based on the linguistic, cultural and religious
differences. In 1925 those colonies gained independence and formed the Federal Republic of
Agnostica and the State of Reverentia. Reverentia is a unitary state, while Agnostica has two
provinces, which have sovereignty over cultural affairs and education. Agnostica`s
Constitution allows dissolutionby a three-quarters vote of the federal parliament.
Nearly 30% of Agnostica’s are ethnic Reverentians, called Agnorevs. Despite the
continuous attempts of the Reverentia to encouragethem to return over 85 % of them decided
to remain citizens of Agnostica.
According to official statistics, the average Agnorevs household in Agnostica earned
157% of the income of the average ethnic Agnostican family.
THE MARTHITE CONVENTION
Marthite is a mineral salt, located in East Agnostica, which is essential for the
Reverentian traditional medicine. In 1938 the two States conclude the Marthite Convention.
Its main purpose, as enshrined in the Preamble is to ensure reliable supply of Marthite to the
traditional practitioners. It recognizes that Marthite is without significant commercial value
outside its traditional uses. Under the Convention Reverentia is to construct mining-support
facilities and to provide engineers and technology for its maintenance. Agnostica gains
ownership over the facilities upon payment. The distribution of Marthite is assigned to RMT,
a state-owned Reverentian undertaking. RMT is to sell only to traditional practitioners located
in the territory of the State Parties at fixed price. RMT may not sold production outside
Agnostica and Reverentia unless the yearly supply exceeds demand from traditional
xviii
practitioners by 25%. If the demand is exceeded by 125% the salt may be sold without
restriction on price, purchaser, or intended use.
Until 2011, RMT complied with the restrictions while the production varied within 5%
between supply and demand.
The mineral has been almost unknown outside Agnostica and Reverentia, until the
ILSA scientific report in 2011 which reported that high doses of Marthite were over 90%
effective in treating previously untreatable infant and early-childhood diseases, afflicting tens
of thousands of children worldwide.
Shortly thereafter RMT started selling some 75% of the total quantity of mined
Marthite to pharmaceutical companies, for price, ten times higher than the permitted. The
conduct of RMT causes serious doubts that shortages and price increases were inevitable.
On 1 February 2012, Agnostica proposed Reverentia to terminate the Marthite
Convention, due to the “fundamental change in the science,” offering reimbursement and
compensation. Reverentia rejected.
On 2 April 2012in light of Reverentia’s refusal to accept a mutually-beneficial settlement
Agnostica declared the Convention terminated and leased all rights to the existing facilities to
Baxter Enterprises.
THE SOFTWARE REMOVAL AND MARTHITE RESTRICTIONS
After the declaration for termination the Reverentian President ordered the return of
Reverentian engineers and removal of the software installed at the facilities.
However RMT continued to tender the agreed annual royalties until March 2013. Agnostica
declined to accept them.
According to Baxter engineers, the withdrawal of personnel and software had crippled
the mining operations. They reported that it may take months to restore extraction on any
meaningful scale. Agnostica decided to resume operation, albeit relying on the manual labour.
xix
As of 31 August 2012, Baxter had not yet been able to restore the software and the
extraction produced roughly 100 kilograms Marthite per day. Most of it was sold to
pharmaceutical companies and the rest was sold to traditional users, at higher prices than
those before 1 April 2012.
As the software restoration was expected to take years, on 1 October 2012, the
Agnostican Parliament passed the Marthite Control Act (MCA), a law banning the sale or
transfer of Marthite into Reverentia, as well as the unauthorized sale and possession of
Marthite within Agnostica. The main reason was providing this life-saving product to
suffering children of the world.
In mid-November, an Agnorev worker at the Marthite facilities, Gohandas Sugdy, was
and was arrested and charge for d possessing Marthite. He explained that according to a local
folk-medicine practitioner, his ill grandfather needed daily doses of the remedy. On 24
November 2012, Sugdy committed suicide in his cell. Shortly after, his grandfather died of
heart failure.
THE PROTEST
After the Sugdy`s dead, a peaceful gathering was held by the Agnorevs in East
Agnostica. Within weeks the crowd increased in its size.
With the passing time the demonstrators increased dramatically in number, frequency
and intensity. They protested against the unavailability of Marthite and the perceived
mistreatment of Gohandas Sugdy. As a result, the Prime Minister of Agnostica sent military
troops to maintain order.
REVERENTIA SUPPORT OF PROTEST
In the light of these events, the President of Reverentia expressed “deep concern for
the safety of our Reverentian brethren abroad,” and offered “any assistance that Reverentia
xx
might provide to protect them”. He also contacted Mr. Bien, an Agnorev politician and MP to
propose assistance.
On 2 January 2013, with clashes between the authorities and protesters continuing, Mr.
Bien proposed a resolution before the Agnostican Parliament, calling upon de-escalation of
the military presence in East Agnostica. The resolution failed by a slight majority.
THE RESOLUTION FOR DISSOLUTION
On 5 January 2013, Mr. Bien presented a resolution to the Agnostican Parliament
proposing dissolution. The resolution was defeated. Four of 33 Agnorev delegates voted
against.
On 9 January 2013, the Reverentian President publicly stated that he commits himself
to the cause of ‘our Reverentians who live in Agnostica’. He added that the Agnostican
Parliament’s wrongful decision cannot defeat the inevitable progress of history. If Agnorevs
wish to be free, Reverentia will do everything to ensure that.
THE RESOLUTION “ON THE CRISIS IN EAST AGNOSTICA”
On 10 January 2013, the Reverentian Parliament adopted a resolution proclaiming that
the referendum reflects the will of the Agnorevs to separate from Agnostica. By a later
resolution the President is authorized by the Government to recognize such referendum at any
means at his disposal in order to support the independency of East Agnostica and to enter into
negotiations to ensure Reventian interests and to take all measures necessary to ensure the
security and integrity of East Agnostica. The resolution was denounced by Agnostica as
unlawful interference in Agnostica’s internal affairs and an act of aggression against its
territorial integrity.
THE REFERENDUM
On 16 January 2013 a plebiscite on the question of secession was voted. On 18
January 2013, Reverentia ordered several hundred soldiers to the border with East Agnostica.
xxi
On 29 January 2013 , the plebiscite was held, and 73 % of voters in favour of
secession. Agnostican Prime Minister denied the legality of the referendum.
East Agnostica’s secession was ratified by “Agnorev People’s Parliament” (APP). At
the same time Agnostica pleaded for help from the international community against the
occupation.
The President of the Security Council expressed concern stating that recent events
might constitute “an unjustifiable and illegal interference in Agnostican domestic affairs.”
Agnostica received support from EU, ASEAN, and several other regional, proclaiming
it as “a threat to international peace and stability.”
ANNEXATION
On 22 February 2013 an Agreement that would make East Agnostica a province of
Reverentia, was ratified. Reverentian Army promptly moved into the region.
Prime Minister Moritz denounced the annexation, but did not send troops into East
Agnostica.
xxii
SUMMARY OF PLEADINGS
Reverentia`s conducts with respect to East Agnostica violated treaty and customary
international law. Firstly, Reverentia`s support for the referendum transgress against the
principle of territorial integrity. Both the adoption of the resolution „On the Crisis of East
Agnostica” and the amassment of military troops near Agnostica`s border constituted a threat
of force and infringed the territorial integrity of Agnostica.
Secondly, Reverentia`s actions in support of the plebiscite imperils the principle of
non-intervention. Reverentia supported the secession movement in East Agnostica and
intervened in the domestic affairs of Agnostica. Moreover, by the contravening the purpose
and the object of the United Nations Charter ,in particular sustaining of the peace and security,
Reverentia violated also the United Nations Charter in general.
East Agnostica remains part of the territory of Agnostica since its secession is illegal
under international law. In this vain, the principle of self-determination cannot justify the act
of secession since the Agnorevs in Agnostica do not fall under the definition of a „people”.
Even if the Court qualify them as a „people” the Agnorevs have only the right of internal selfdetermination. In any event, the Agnorevs do not have the right of external self-determination
since the principle is applicable only to peoples under colonial and alien domination.
Furthermore, the purported attempt is to be proclaimed illegal because of the actions of
Reverentia encouraging the secession as between state relations there is an obligation not to
recognize situations created by a breach of international law.
Even if Respondent argues the notion of remedial secession justify the conducted
unilateral secession the latter doctrine is not part of customary international law since the state
practice is far from consistent. Alternatively, if the Court finds that remedial secession has
emerged as customary norm, the prerequisite requirements of the rule are not met in the
present dispute.
xxiii
Under international law annexation with regard of the territory of another sovereign
State is illegal. Thus, Reverentia’s conduct with respect to East Agnostica is not in conformity
with the international legal order. What is more, it is a general principle of law that an illegal
act cannot give birth to a right in law. Hence, resulting from the unlawful secession, the
annexation of East Agnostica violates international law. Further, the decision of the so-called
Agnorev’s Parliament has no legal force since this is not an organ having the capacity to adopt
such an effect and measures. In any event, the uti possidetis principle renders East
Agnostica’s secession and annexation prohibited under international law. Conclusively, the
secession attempt and subsequent annexation of East Agnostica by Reverentia are illegal and
without effect.
The Marthite Convention has been lawfully terminated, as two possible grounds for its
termination under customary international law are at present in the case at hand. Firstly,
Reverentia actions against the Marthite Convention regulations constitute a material breach.
Secondly, the recently discovered Marthite qualities constitutes a fundamental change of
circumstances which changes the extend of parties obligations and forms an essential basis of
the parties consent to be bound by the treaty. Moreover, Agnostica has grounds for invoking
invalidity of its consent to be bound by the treaty, based on error concerning the Marthite
medical use. Agnostica fulfills all of the customary international law requirements for
invoking the Convention out of effect after April 2012. Therefore, the convention is
considered out of effect.
Even if the Marthite Convention was still in effect after that date, it has not been
breached by Agnostica. The ban on the free movement of Marthite has been put under the
conditions of necessity, which precludes its wrongfulness under customary law.
xxiv
The removal of the software by Reverentia constitutes deprivation of Agnostican
sovereign property. Under the Marthite Convention Agnostica gained property rights over the
software and the software removal contradicts them.
Moreover, the wrongfulness of the removal is not precluded. There are no
opportunities for the preclusion of the acts` wrongfulness, because the law of state
responsibility is not applicable in the case at hand. In the alternative, Reverentia`s actions do
not meet the requirements for countermeasures under customary international law. The
actions of Reverentia are neither proportionate, nor they comply with the procedural
requirements
for
invoking
xxv
countermeasures.
PLEADINGS
I. REVERENTIA’S
AGNOSTICA’S
ENCOURAGEMENT OF THE
EAST AGNOSTICAN
REFERENDUM VIOLATED
TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-INTERVENTION, AND THE
UNITED NATIONS CHARTER GENERALLY
A. Reverentia`s support for the referendum violated the principle of territorial integrity
The principle of territorial integrity is an essentially important part of the international
legal order. It is enshrined in Article 2(4) of the UN Charter.1 This basic rule is further
reiterated in numerous international instruments2 and especially in the Friendly Relations
Declaration which underlines the inviolability of the territorial integrity and political
independence of States.3 In Kosovo4 and Nicaragua5 the Court has found that the latter
resolution reflects customary international law. In this vein, Reverentia`s encouragement of
the referendum (1) by the adoption of the Resolution “On the Crisis in East Agnostica” (Crisis
1
Charter of the United Nations, 1 U.N.T.S. XVI (1945); Randelzhofer, A. and O. Dörr,
Article 2(4) in SIMMA, B. (ED) THE CARTER OF THE UNITED NATIONS: A COMMENTARY, 200,
223 (3rd ed. 2012) [‘SIMMA’].
2
The Final Act of the Conference on Security and Cooperation in Europe, 14 I.L.M. 1292
(1975) [‘Helsinki Final Act’]; European Commission for Democracy, CDL-AD (2014) 004,
Opinion no. 763/2014, 98th Plenary Session, ¶15.
3
Article 6(2)(d) Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations, G.A.
Res. 2625 (XXV), U.N. Doc. A/8028 (1970) [‘Friendly Relations Declaration’].
4
Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion, 2010 I.C.J.¶80 [‘Kosovo’].
5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits,
1986 I.C.J. 14, ¶191-193 [‘Nicaragua’].
1
Resolution); and (2) by the deployment of military troops near the border, breached the
principle of territorial integrity.
1. The adoption of the Crisis Resolution by Reverentia imperils the territorial integrity
of Agnostica
The right of national liberation movements to seek outside support has been
recognized only in the context of colonial and alien domination.6 In all other cases States are
required to strictly observe the territorial integrity of the parent State.7 Hence, in situations in
which third States support or encourage the actions of secessionist movements, this would
amount to a violation of the territorial integrity of the parent State as affirmed by multiple
Security Council Resolutions8 and other documents.9 The Crisis Resolution recognizes the
conducted referendum “as lawful and valid” and expresses Reverentia’s readiness “to take all
measures necessary to ensure the security and the integrity of East Agnostica.”10 Therefore,
by giving its support for the referendum, Reverentia violated its duty to respect the
6
Implementation of the Declaration on the Granting of Independence to Colonial Countries
and Peoples, G.A. Res. U.N. Doc. A/RES/2105 (XX) (1965); G.A. Res. 3236, U.N. Doc.
A/RES/3236 (XXIX) (1974); G.A. Res. 31/61, U.N. Doc. A/RES/31/61 (1976); G.A.
Res. 34/44, U.N. Doc. A/RES/34/44 (1979).
7
Friendly Relations Declaration.
8
S.C. Res. 937, U.N. Doc. S/RES/937 (1994); S.C. Res. 934, U.N. Doc. S/RES/934 (1994);
S.C. Res. 906, U.N. Doc. S/RES/906 (1994); S.C. Res. 896, U.N. Doc. S/RES/896 (1994).
9
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 P.C.I.J., Ser. B,
No. 4, 27-28 [‘Nationality Decrees’]; Report of the Secretary-General on the Situation in the
Federal Islamic Republic of the Comoros, Decisions and Resolutions of 68th Ordinary
Session, O.A.U. CM/Dec.405, Doc. CM/2062 (LXVIII) (1998).
10
Compromis, ¶35.
2
inviolability of every State and to positively protect the territorial composition of States, 11 in
particular the territorial integrity of Agnostica.
2. Reverentia`s amassment of troops near Agnostica`s border constitutes a threat of
force and therefore infringes the territorial integrity of Agnostica
As emphasized in the consistent practice of this Court, territorial integrity relates to
the “complete and exclusive sovereignty of a State over its territory.”12 Furthermore, this
principle, understood together with the principles of non-intervention and political
independence, entitles States to choose and implement their own political, economic and
social systems without outside interference and in particular free from threats or use of force
by other States.13
On the day of the referendum, Reverentia sent several hundred soldiers near
Agnostica`s border.14 These actions should be regarded as an inseparable part of the
referendum`s support and comprise a threat to use force against the territorial integrity of
Agnostica.15 For instance, the USSR’s amassment of troops near the Turkish border in 1946
11
Kosovo, Written Statements, Serbia, ¶423-424.
12
Nicaragua, ¶209; Armed Activities on the Territory of the Congo (Demovratic Republic of
the Congo v. Uganda), Judgment, 2005 I.C.J., ¶164 [‘Congo v. Uganda’].
13
Nicaragua, ¶¶258, 212.
14
Compromis, ¶37.
15
S.C. Res. 949, U.N. Doc. S/RES/949 (1994); STÜRCHLER, N., THE THREAT
OF
FORCE
IN
INTERNATIONAL LAW, 209, 216 (2007); Guyana v Suriname Arbitration, Award, 47 I.L.M.
166 ¶¶439, 445; Wilmshurt, E., The Chantam House Principles of International Law on the
Use of Force by States in Self-Defense, Int'l & Comp. L.Q., Vol. 55, No. 4, 963 (2006);
Roscini, M., Threats of Armed Force and Contemporary International Law, 54 Neth. Int’L L.
Rev. 229, 242 (2007).
3
was accepted as e credible threat16 as well as the movements of Turkish troopships in the
vicinity of Cyprus in 196417 and also Iraq’s troop build-up near the border with Kuwait in
1994.18 Moreover, in Nicaragua the Court recognized that military manoeuvres near a State
border may amount to a threat of force.19 Likewise, as the Court held in Corfu Channel “a
demonstration of force for the purpose of exercising political pressure” violates Article 2(4) of
the Charter.20
As stated in Nuclear weapons, “if the envisaged use of force is itself unlawful, the
stated readiness to use it would be a threat prohibited under the Charter.”21 In the present case,
the manoeuvres in question are intended to serve Reverentia’s policy objectives such as “to
secure territory from another State, or to cause it to follow or not follow certain political or
economic paths”22 materialized in the unlawful support of East Agnostica’s referendum. The
threat or use of force is permissible only in a limited number of cases - in situations of self-
16
de Luca, A., Soviet- American Politics and the Turkish Straits, 92 Political Sci. Q., Vol. 92,
503, 516–20 (1977).
17
Repertoire of the Practice of the Security Council, Suppl. 1964-1965, XVI, 238 S. (Sales
No. 1968. VII. 1). Doc. ST/PSCA/l/Add. 4., 202 (1968).
18
S.C. Res. 661, U.N. Doc. S/RES/661 (1990); U.N. S.C.O.R., 49th Sess., 3438th Meeting,
U.N. Doc. S/PV.3438, 4-5, 8-11, 13 - statements of Argentina, Djibouti, Kuwait, New
Zealand, Pakistan, Spain, UK, US (1994).
19
Nicaragua, ¶227.
20
Corfu Channel (Great Britain v. Albania), Merits, Judgment, 1949, I.C.J. 4, 35.
21
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J., ¶47
[‘Nuclear weapons’].
22
Ibid.
4
defense23 or with the authorization of the Security Council.24 Since the deployment of patrols
near Agnostica’s borders could not be justified on the abovementioned grounds, it constitutes
a prohibited threat against the territorial integrity of Agnostica.
3. The right to self-determination could not justify the encouragement of the referendum
Respondent may rely on the erga omnes character of self-determination in order to
justify its support for the referendum. However, the context of this principle is only limited to
situations of colonial and alien domination.25 In any event, under the Friendly Relations
Declaration and other GA Resolutions26 the right of self-determination can only be exercised
within the confines prescribed by the other principles, including territorial integrity.27 Hence,
self-determination does not prevail over the principle of territorial integrity of States and
cannot justify Reverentia’s actions.
B. Reverentia`s encouragement of the referendum violates the principle of nonintervention
23
Art. 51, Charter.
24
Art. 50, Charter.
25
Art. 2 Declaration on the Granting of Independence to Colonial Countries and Peoples,
G.A. Res. 1514 (XV), U.N. Doc. A/4684, 66 (1960) [Declaration on the Granting of
Independence]; Thürer, D & T. Burri, Self-determination, Oxford Publ. I`tnl L., MPEPIL, ¶¶6,
15 (2008).
26
G.A. Res. 37/42, U.N. Doc. A/Res/37/42 (1982); G.A. Res. 38/16, U.N. Doc. A/38/47
(1983); G.A. Res. 61/150, U.N. Doc. A/Res/61/150 (2006); G.A. Res. 62/144, U.N. Doc.
A/Res/62/144 (2007); G.A. Res.,U.N. Doc. A/Res/63/163 (2009).
27
The Arbitration Commission of the European on the former Yugoslavia, Opinion No. 2, 31
I.L.M. 1497 (1992) [‘Badinter Commission’]; MUSGRAVE, T., SELF-DETERMINATION
NATIONAL MINORITIES, 247 (2000).
5
AND
The principle of non-intervention is generally accepted as one of the fundaments of
international law.28 It is recognized as a part of customary international law.29
Notably, the Friendly Relations Declaration prohibits intervention in any forms – be it
economic, political or other, directly or indirectly manifested.30 This Court has emphasized
the importance of the non-intervention principle in Nicaragua finding that intervention is
permissible only upon the invitation of the government of the State, while intervention in
support of the opposition and secessionist movements threatens not only the sanctity of the
principle of non-intervention but the international legal order at large.31
1. The support of the secession movement in East Agnostica violates the principle of nonintervention
Indirect interference in civil strife in another State, including actions that incite or
tolerate subversive actions has been widely condemned.32 Similarly, in Congo v. Uganda the
28
JENNINGS
AND
WATTS (EDS), OPPENHEIM’S INTERNATIONAL LAW, VOL. 1, 535 (9TH
ED.)
(2008) [‘OPPENHEIM’S’]; BROWNLIE, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 447 (7TH
ED. 2008); SHAW, M., INTERNATIONAL LAW, 1148
29
(6TH ED. 2008) [SHAW].
Friendly Relations Declaration; Declaration on the Inadmissibility of Intervention in the
Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A.
Res. 2131 (XX), U.N. Doc. A/RES/20/2131, ¶1 (1965) [Declaration on the Inadmissibility];
Helsinki Final Act, VI; Declaration on the Inadmissibility of Intervention and Interference in
the Internal Affairs of States, G.A. Res. 36/103, U.N. Doc. A/RES/36/103, Annex, ¶ 2 (II)(a)
(1981); Peaceful and Neighbourly Relations among States, G.A. Res. 1236 (XII), U.N. Doc.
A/RES/12/1236 (1957); Nicaragua, ¶205.
30
Friendly Relations Declaration.
31
Nicaragua, ¶246.
32
Friendly Relations Declaration; Declaration on the Inadmissibility, ¶2; Helsinki Final Act,
VI.
6
Court expressly concluded that the prohibition on intervention encompasses also subtle forms
of interference such as to “foment… incite or tolerate” subversive activities in another State.33
The Agnostican Parliament expressly rejected the dissolution proposal. On the other
hand, Reverentia by the actions of its officials including President Nuvallus’ speech and the
Parliament`s Crisis Resolution expressed its full support for the secession movement in East
Agnostica.34 Reverentia’s actions, which are a matter of public knowledge, constitute indirect
interference in civil strife in Agnostica.35
2. Reverentia intervened in the domestic affairs of another State
The principle of non-intervention is a fundamental right of every State to choose and
implement its sovereign policy.36 As observed by the Court, this rule “forbids all States or
groups of States to intervene directly or indirectly in internal or external affairs of other
States.”37 In particular, direct or indirect support for subversive groups in another State are
prohibited.38
33
Congo v. Uganda, ¶¶¶162, 300-301; Nicaragua, ¶191.
34
Compromis ¶¶34; 35.
35
Ibid.
36
Nicaragua ¶¶202,258; Nationality Decrees, 23-24; Friendly Relations Declaration; S.C.
Res. 1271, U.N. Doc. S/RES/1271 (1999); G.A. Res. 58/189, U.N. Doc. S/RES/58/189
(2003); G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997); SIMMA, 790.
37
Nicaragua, ¶205; Congo v. Uganda, ¶164.
38
Ibid.
7
Additionally, the inviolable right of political integrity is enshrined in the Montevideo
Convention39 which applies in the present case as treaty law.40 Hence, the intervention of a
State against the political integrity of another State is prohibited when it is executed by
“methods of coercion in regard to such choices, which must remain free ones”.41
The organization and execution of the referendum are exclusively regulated by the
sovereign State of Agnostica through its governmental authorities. Reverentia`s readiness to
recognize and extend diplomatic recognition as well as the given insurance to take all
measures necessary to ensure the integrity of East Agnostica constitute an interference in the
domestic affairs of Agnostica.42
C. Reverentia`s encouragement of the referendum violates the Charter in general
1. The violation of the abovementioned principles entails the violation of the Charter
As was proven supra, Reverentia has violated the principles of territorial integrity,
non-intervention, as well as the prohibition of threat to use of force. Article 2(4) of the Charter
prohibits the threat or use of force against the territorial integrity of States.43 This rule is
considered as the “crucial normative foundation” of the Charter.44 Similarly, Article 2(7) of
the Charter emphasizes the importance of the non-intervention principle.
39
Article 8, Convention on Rights and Duties of States, Montevideo, 165 L.N.T.S. 19 (1933).
40
Compromis, ¶44.
41
Nicaragua, ¶205.
42
Compromis, ¶35.
43
Article 2(4), Charter.
44
Comment, The Use of Nonviolent Coercion: A Study in Legality under Article 2(4) of the
Charter of the United Nations, 122 U. PA.L. Rev., 983, 986 (1974).
8
If the Court accepts that Reverentia has violated the abovementioned principles, then it
should consider that Respondent has violated the Charter in general.
2. Reverentia’s actions contravene the purpose and the object of the Charter
The purpose of the Charter is enshrined in Article 1, namely to maintain international
peace and security.45 This effect is to be achieved through “peaceful means,” “friendly
relations among nations” and “co-operation” in solving international problems.46
By encouraging the referendum, Reverentia raised the pressure in the region of East
Agnostica. Respondent did not make any effort to co-operate or to initiate negotiations with
Agnostica in order to solve the issue by peaceful means. The European Union, ASEAN, and
other regional bodies qualified the possible annexation of East Agnostica as “a threat to
international peace and stability.”47
With its actions, Reverentia infringes the main object of the Charter, in particular to
sustain peace and security. Therefore, Respondent violated the very purpose of the Charter.
II. THE
PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF
EAST AGNOSTICA
ARE
ILLEGAL AND WITHOUT EFFECT; AND THEREFORE, EAST AGNOSTICA REMAINS PART OF THE
TERRITORY OF AGNOSTICA
A. The secession of East Agnostica is illegal under international law
1. The principle of self-determination cannot justify the secession of East Agnostica
45
Wolfrum, R, Ch.I Purposes and Principles, Article 1, in SIMMA, 93, ¶7.
46
Ibid., 216, ¶38.
47
Compromis, ¶40.
9
Applicant submits that (1) the Agnorevs cannot be qualified as “peoples” for the
purposes of self-determination; and that (2) their right to self-determination is limited to its
internal aspect and (3) in any event, they do not have the right to external self-determination.
i) The Agnorevs in Agnostica do not fall under the definition of a “people”
The Charter,48 the Friendly Relation Declaration and the International Covenant on
Civil and Political Rights49 provide for a right to self-determination of “peoples”. This term is
not defined in the abovementioned instruments, but there is wide consensus that “people”
encompasses the whole population of a given State or non-self-governing territory and does
not, in particular, include ethnic groups or minorities.50 Thus, this Court has described the
right to self-determination as one embracing “all peoples and territories which have not yet
attained independence,”51 thereby referring to the whole population, not to its constituent
48
Article 1(2) Charter.
49
Article 1, International Covenant on Civil and Political Rights, 16 December 1966, 999
U.N.T.S. 171 [ICCPR].
50
Kosovo, Statement by the Permanent Representative of the Republic of Azerbaijan to the
United
Nations,
Oral
Proceedings,
3
December
2009,
¶36,
available
at
<http://www.icjcij.org/docket/files/141/15716.pdf>; ICCPR, Third Periodic Reports of States
Parties due in 1991, Addendum, Report Submitted by Shri Lanka, 17 July 1944,
CCRP/C/70/Add.6, (1944).
51
Western Sahara, Advisory Opinion, 1975 I.C.J. 1, ¶162 [‘Western Sahara’]; Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16,
¶52-53 [‘Namibia’]; East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. 90 ¶29; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, ¶88 [‘Wall’].
10
ethnic groups. In its Declaration on Inadmissibility, the GA used the terms “nations” and
“peoples” as synonyms.52
Similarly, in the Åaland Island was noted that international law does not permit
“separation of a minority from the State of which it forms part.”53 This is supported both by
the position of eminent scholars54 of international law and vast state practice.55 Moreover, the
Inter-American Commission on Human Rights declared self-determination to be the right of
a people to choose their form of political organization and to pursue their economic, social
and cultural development, but “this does not mean, however, that it recognizes the right to
self-determination of any ethnic group as such.”56 In Kosovo, the most recent occasion on this
question before the Court, many States submitted in their oral or written pleadings that
“people” does not include minority or ethnic groups on the territory of an existing State.57
52
53
Declaration on the Inadmissibility, ¶6.
Åaland Island, Report by the Commission of Rapporteurs, League of Nations Council
Document B7 21/68/106, 318 (1921).
54
CRAWFORD, J., THE CREATION
OF
STATES
[‘CRAWFORD’]; HIGGINS, R., PROBLEMS
AND
IN INTERNATIONAL
LAW, 415 (2nd Ed. 2006)
PROCESS, INTERNATIONAL LAW
AND
HOW WE
USE IT, 124 (1994); Kosovo, ¶10 (Separate Opinion of Judge Yusuf).
55
The position of States as Indonesia, India, Pakistan, Sri Lanka and Thailand, ratifying the
ICCPR
available
at
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv4&lang=en; Badinter Commission, Opinion No 2.
56
Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin,
I.A.C.H.R., OAS, OEA/Ser.L/V.II.62, Doc. 10, Eev. 3, ¶9 (1983).
57
Kosovo, Written statement of Argentina, ¶59.
11
In the present case, the Agnorevs share the same history, culture and ethnical identity,
as well as common economic background.58 Hence, they form an ethnic group.
ii) The Agnorevs may exercise internal self-determination
Outside the colonial context, self-determination only applies in its internal aspect and
provides for the people’s right to be equally represented within the sovereign State. 59 This is
evidences by a line of UN resolutions60 and consistent State practice.61
In Quebec case the Canadian Supreme Court took the position that “[s]elfdetermination of a people is normally fulfilled through internal self-determination”.62
Similarly, the African Commission on Human Rights’ observations in the case of Katangese
Peoples’ Congress v. Zaire lend support to the proposition that ethnic subgroups are entitled
58
Compromis, ¶¶¶ 4,5,6.
59
Report of the Independent International Fact-Finding Mission on the Conflict in Georgia,
2008/901/CFSP, Vol. II, 147 (2009); CRAWFORD, 415; SHAW, 293; Hilpold, P., The Kosovo
Case and International Law: Looking for Applicable Theories, CHINESE J. INT`L L.,Vol. 8,
46, 55 (2009) [Hilpold].
60
S.C. Res. 724, U.N. Doc. S/Res/724 ¶7 (1991); G.A. Res. 441 (V), U.N. Doc. A/Res/441/5
(1950); G.A. Res. 1723 (XVI), U.N. Doc. A/Res/1723/16 (1961); General Recommendation
21, The right to self-determination, U.N. Doc. A/51/18, annex VIII, 125 (1996).
61
Declaration on the Situation in Yugoslavia, Extraordinary European Political Cooperation
Ministerial Meeting, EC Press Release 61/91 (1991); Resolution 233, Council of Europe, 22
April 1997; Vienna Declaration of the CSCE Parliamentary Assemble, PA(94)7, ¶21 (1994).
62
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, ¶138.
12
to internal self-determination63 as well as the Tartastan decision issued by the Constitutional
Court of the Russian Federation.64
The Agnorevs are granted with the full capacity of their right of internal selfdetermination as they can pursue their own economic, social, and cultural development.65
Agnorev’s rights pertaining to their ethnic origin are well preserved from violations by the
widely developed human rights system of Agnostica.66 They are represented by almost half of
the members at the Agnostican Parliament67 and have the highest life standard in Agnostica.68
Hence, their right of internal self-determination is preserved.
iii) In any event, the Agnorevs do not have a right of external self-determination
The right to external self-determination consisting in the right to form an independent
State is related exclusively to peoples under colonial and alien domination.69 Likewise, in
Namibia, this Court observed that the principle of self-determination embraces all peoples and
63
Katangese Peoples’ Congress v. Zaire, A.C.H.P.R., Comm. No. 75/92, 256 (1995).
64
Tartastan Sovereignty case, [1992] Constitutional Court of the Russian Federation, P-R3-1,
(1992).
65
Compromis, ¶6.
66
Clarification ¶4.
67
Compromis, ¶¶31,33.
68
Compromis, ¶7.
69
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2, ¶4 (2000); Western
Sahara, ¶56; Kosovo, ¶82. Quane, H., The United Nations and the Evolving Right to Selfdetermination, 47 Int'L & Comp. L.Q. 537, 558 (1998); Hilpold, 55.
13
territories which have not yet attained independence, in particular territories under colonial
regime.70
Consequently, even if the Agnorevs qualify as a “people”, the principle of selfdetermination does not automatically entail their right to secession.71
In the present case, both Agnostica and Reverentia have already gained there
independence from Credera in.72 Moreover, despite the Reverentia encouragement to return
over 85% of Agnorevs resident in Agnostica elected to remain Agnostican citizens.73
Therefore, the principle of external self-determination is not applicable to the present dispute
and.East Agnostican does not have the right to secede.
2. The secession was conducted with the help of Reverentia
Admittedly, in the Kosovo, the Court has held that international law does not regulate
and hence does not prohibit unilateral declarations of independence. 74 This finding of the
Court must be read strictly within the context of the relations between a State and a seceding
entity on its territory – the latter not being a subject of international law. However, in State-toState relations there is an obligation not to recognize situations created by a breach of
international law.75
70
Namibia, ¶52; Western Sahara, ¶56.
71
Declaration on the Granting of Independence.
72
Compromis, ¶5.
73
Ibid., ¶6.
74
Kosovo, ¶84.
75
Article 41, Articles on Responsibility of States for Internationally Wrongful Acts,
Y.B.I.L.C., vol. II (Part Two) (2001) [‘ARSIWA’]; Namibia, ¶119.
14
As noted supra, by its actions Reverentia threatened to use force which laid further
encouragement to the Agnorev’s claims and facilitated their attempted secession. The Court
has recognized that in such situations the secession is unlawful.76 There are many other
examples of entities which made attempts to secede by violating general international law.
Those attempts were proclaimed illegal because of the actions of third States encouraging the
secession.77
Similarly, Reverentia encouraged the secession movement in East Agnostica.78
Moreover, it sent military patrols along Agnostica’s borders79 and promoted the recognition of
East Agnostica.80 With those actions the Respondent indirectly initiated and safeguard the
secession of East Agnostica by violating principles of general international law. Hence, the
secession should be condemned as inconsistent with international law.
3. Remedial secession cannot justify the conducted unilateral secession
i) The doctrine of remedial secession is not part of customary international law
Respondent may try to argue that remedial secession has become part of customary
law. This argument cannot be accepted since in order for a customary rule to emerge, there
76
Kosovo, ¶81; S.C. Res. 216, U.N. Doc. S/RES/216 (1965); S.C. Res. 217, U.N. Doc.
S/RES/217 (1965); S.C. Res. 787, U.N. Doc. S/RES/787 (1992).
77
S.C. Res. 1023, U.N. Doc. S/Res/1023, preamble (1995); S.C. Res. 815, U.N. Doc.
S/Res/815, ¶5 (1993); CRAWFORD, 408; Declaration on the “Guidelines on the Recognition of
New States in Eastern Europe and in the Soviet Union”, European Community, 31 I.L.M.
1485 (1992).
78
Compromis, ¶35.
79
Compromis, ¶37.
80
Compromis, ¶¶ 35,41.
15
should be constant State practice81 and opinio juris.82 In particular, where the practice is
fraught with “uncertainty and contradiction… fluctuation and discrepancy”83 the formation of
a customary rule is obstructed.
There is no State practice in respect of remedial secession. Crawford identifies only
the case of Bangladesh as a possible example of remedial secession,84 but no State recognized
Bangladesh and it was denied admission into the UN until Pakistan granted its consent. In the
case of Chechnya – despite the fact that grave violations of human rights law were perpetrated
–its claim to independence was not recognized and the SC has issued resolutions affirming the
territorial integrity of the Russian Federation.85 Similarly, in the case of Abkhazia the SC
again affirmed the territorial integrity of Georgia86. Thus, there is no State practice and opinio
juris on the question of remedial secession.
More recently, in Kosovo, the Court emphasized in relation to the concept of remedial
secession that States hold “radically different views”.87 For instance, in their written
statements many States explicitly rejected this doctrine.88
81
North Sea Continental Shelf cases (Federal Republic of Germany/Denmark, Judgment,
1969 I.C.J. 3, 44, ¶ 77 [‘North Sea’]; Asylum (Colombia/Peru), Judgment, 1950 I.C.J. 266,
276-277 [‘Asylum’].
82
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J. 13, ¶27.);
Nicaragua, ¶183; Jurisdictional Immunities of the State (Germany v. Italy: Greece
intervining), Judgment, 2012 I.C.J. ¶55 [‘Germany v. Italy’]; Nuclear weapons, ¶64.
83
Asylum, 277; North Sea, ¶74.
84
CRAWFORD, 393.
85
Ibid, 408.
86
S.C. Res. 1808, U.N. Doc. S/RES/1808 (2008).
87
Kosovo, ¶82.
16
In view of the fact that the elements for the existence of custom are not met, remedial
secession does not form part of lex lata. Therefore, the Respondent could not justify the
legality of East Agnostica’s secession upon the theory of remedial secession.
ii) Alternatively, the requirements for remedial secession are not met
Even if the Court recognizes the right of remedial secession as part of customary
international law, the threshold for its application is not met in the present case. Scholars
addressing remedial secession have observed that it is only permitted in the case of gross
violations of individual human rights89 such as “ethic cleaning, mass killings and genocide.”90
For instance, in the cases of Bangladesh and Bosnia and Herzegovina the
circumstances involved acts of repression and genocide.91 Notably, in the case of Kosovo
there were mass killings and the Kosovar Albanians have been systematically repressed.
Nevertheless, in Resolution 1244 the SC again reaffirmed the territorial integrity of Serbia92
showing that the threshold regarding remedial secession is exceptionally high.
88
Kosovo, Written Statements, Argentina, Republic of Azerbaijan, Republic of Cyprus, State
of Bolivia, United Kingdom.
89
RAIČ, D., STATEHOOD AND
90
Anderson G, Secession in International Law and Relations: What Are We Talking About?,
THE LAW OF SELF-DETERMINATION,
415-416 (2002).
Loy. L.A. Int'l & Comp. L. Rev. 343, 351-352 (2013).
91
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 128, ¶ 190;
Vidmar, J., South Sudan and the International Legal Framework Governing the Emergence
and Delimitation of New States, TEXAS J. INT’L L., Vol. 47, No. 3, 541, 545 (2012).
92
S.C. Res. 1244, U.N. Doc. S/RES/1244 (1999).
17
In addition, remedial secession may be exercised only as a last resort, when no other
alternatives are available.93
There is no indication in the present case of such a grave and massive violation of the
internal right of self-determination or the human rights of the Agnorevs. On the contrary, the
Agnorev’s rights are well preserved due to the fact that they are represented in the National
Parliament94 and Agnostica has a developed civil law system.95 Hence, the preconditions for
exercising the right of remedial secession are not present in the situation at hand.
B. Reverentia’s annexation of East Agnostica violates international law
1. Annexation is illegal under international law
This Court has observed in the Wall AO that “no territorial acquisition resulting from
the threat or use of force shall be recognized as legal.”96 As was discussed supra, Reverentia
threatened Agnostica with force thereby illegally supporting the aspirations of the Agnorevs.
Consequently, the annexation is illegal.97 This was the stance of the community of States in
the situation with Crimea – many States, condemned the Russian Federation’s annexation.98
2. Resulting from the illegality of the secession, the annexation is also illegal
93
BUCHANAN, A., JUSTICE, LEGITIMACY, AND SELF-DETERMINATION, 355 (2007); COPPIETERS,
B. & RICHARD SAKWA, CONTEXTUALIZING SECESSION: NORMATIVE STUDIES IN COMPARATIVE
PERSPECTIVE, 7 (2003); Scharf, M., Earned Sovereignty: Juridical Underpinnings, DENV. J.
INT’L L. & POL’Y 373, 381 (2003).
94
Compromis, ¶31.
95
Clarification, ¶4.
96
Wall, ¶87.
97
Cyprus v. Turkey, Judgment, E.Ct.H.R., 25781/94, ¶60–1 (2001); S.C. Res. 662, U.N. Doc.
S/RES/662 (1990).
98
Statement on the reported holding of local elections in Crimea, EU Doc. No. 140915/01.
18
It is a general principal of law that an “illegal act cannot give birth to a right in law”.99
Consequently, if the Court finds that the secession of East Agnostica is illegal, then the
annexation is also illegal.
3. The decision of the so-called Agnorev’s Parliament has no legal force
The decision for East Agnostica’s integration into Reverentia was given by the
Agnorev People`s Parliament. This is not however an organ having “the capacity of an
institution created by and empowered to adopt a measure of [such] significance and
effects.”100
In any event, the option to integrate with an independent State is set forth in the
Declaration on the Granting of Independence. However, this resolution is strictly limited to
colonial peoples.101 Hence, the APP`s decision to send an invitation for integration of East
Agnostica into Reverentia does not entail any legal consequences.
4. In any event, the uti possidetis principle renders East Agnostica’s secession and
annexation illegal
Under the uti possidetis principle boundaries are to follow the colonial administrative
boundaries.102 In the case at hand, both Agnostica and Reverentia are ex-colonies of Credera.
99
SHAW, 361; OPPENHEIM’S, 699.
100
Kosovo, ¶105.
101
Western Sahara, ¶57.
102
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), Judgment, 1992 I.C.J., ¶¶28,40. [‘El Salvador’].
19
Consequently, the principle applies in casu rendering the boundaries as inherited intangible.103
The purpose of this principle “is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of frontiers following the
withdrawal of the administering power.”104 In order to prevent further struggles the uti
possidetis principle renders the principle of self-determination inoperable.105 Since the
principle of uti possidetis is violated, the annexation is not in conformity with international
law.
III. THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2 APRIL 2012 AND, IN ANY
EVENT, AGNOSTICA DID NOT BREACH THE CONVENTION
Both States are parties to the Vienna Convention on the Law of Treaties (‘VCLT’).
However, according to Article 4 thereof and the principle of non-retroactivity, it is not
applicable to treaties concluded before its entry into force, The Marthite Convention was
concluded in 1938106, therefore the provisions of the VCLT apply only in so far as they reflect
customary international law.
103
Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J. 90, ¶45.
104
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 I.C.J. 554 ¶19, ¶¶21-
22 [‘Burkina Faso/ Mali’]; Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, 2007 I.C.J. 659, ¶151;
Frontier Dispute (Burkina Faso/Niger), Judgment, 2013 I.C.J. 44, ¶63.
105
Burkina Faso/Mali, ¶25.
106
Reports of the International Law Commission on the second part of its seventeenth session
and on its eighteenth session, Document A/6309/Rev.l:, ILC Law of the Treaties Final Draft
with Commenataries, Commentary to Art 45, 244 ¶4; Y.B.I. L.C., vol. II, U.N. Doc.
A/CN.4/SER.A/Add.l (1966).
20
Customary law regulating the law of treaties provides that a convention is no longer in
effect under certain set of conditions. These conditions are discussed in the next sections..
A. Agnostica has lawfully terminated the Marthite Convention based on the general
rules for termination
The parta sunt servanda rule is a customary law rule, but it also has a number of
exceptions107, in which a treaty ceases to be in force.108 Treaties which do not include specific
termination provisions, such as the Marthite Convention, may be terminated only on the
grounds listed in Part V of the VCLT109, which represent customary international law.110 As
well settled in the practice of this Court111, the foregoing provisions are directly applicable as
law under art. 38(1)(b) of the Court’s Statute.112
1. Agnostica was entitled to terminate the Convention on the basis of a material breach
107
Special Rapporteur Sir Humphrey Waldock, Second Report on Law of Treaties,
Y.B.I.L.C., vol.II (Part One) (1963), 39[‘Waldock II Report’];VILLIGER, M., COMMENTARY
ON THE 1969 VIENNA CONVENTION ON THE LAW OF THE TREATIES 545 (2009).
108
109
OPPENHEIM’S, 1296.
Article 42, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 33 (1969),;
Gabčíkovo, ¶100.
110
OPPENHEIM’S, 1300; DÖRR, O., SCHMALENBACH, K., VIENNA CONVENTION ON THE LAW OF
TREATIES, A COMMENTARY 737(2012).
111
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1997 I.C.J., ¶46
[‘Gabčíkovo’]; PCIJ Diversion of Water from the Meuse, Judge Anzilotti Dissenting Opinion
P.C.I.J. Ser A/B No 70, 50 (1937) [Diversion, Anzilloti]; Namibia, ¶96, 98;
112
Statute of the International Court of Justice, 59 Stat.1055, 33 U.N.T.S. 993 (1945).
21
Art. 60 (1), VCLT outlines that a material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a ground for terminating the treaty. A
material breach is “the violation of a provision essential to the accomplishment of the object
or purpose of the treaty.”113 As the Court stressed in Namibia AO, article 60, VCLT is also
considered a codification of customary law.114 This is confirmed also by the fact that during
the Vienna Conference, Article 60 was adopted without any negative vote or objection.115
Determining what a ‘material breach’ is depends on the precise facts and
circumstances of each case.116 But as this Court confirmed, it presents a deliberate violation of
obligations which destroys the very object and purpose of the treaty.117
The object and purpose of a treaty are to be interpreted in conformity with the general
rules of interpretation established in international law.118 This Court has always accepted the
preamble of a given treaty as guidance for its object and purpose.119
113
Article 60(3) VCLT; OPPENHEIM’S, 1300; Namibia, ¶96, 98.
114
Namibia, ¶94.
115
DÖRR, 1027.
116
Aust, A., Treaties, Termination, M.P.E.P.I.L. ¶31 (2006).
117
VCLT, art 60 (3).
118
Nuclear weapons, ¶19; LaGrand (Germany v. United States of America) 2001, I.C.J., ¶99;
Avena and other Mexican nationals (Mexico v. United States of America), Judgment, 2009
I.C.J., ¶83; Case Concerning the Arbitral Award of 31 July 1989, (Guinea-Bissau v. Senegal)
1991, ¶48; Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J., ¶18
[“Kasikili/Sedudu”]; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France) 2008 I.C.J., ¶123; Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, 2010 I.C.J, ¶91 [‘Pulp Mills’].
22
As for the Preamble of the Marthite Convention, its main purpose is to “ensure reliable
supply of Marthite to those for whom it holds cultural significance”. This stipulation is
guaranteed by prohibiting Marthite sales outside Reverentia and Agnostica, unless supply in
any given calendar year is 25% higher than local demand.120 RMT is allowed to sell Marthite
without any restrictions only if the mined Marthite is in excess of 125% of demand from
traditional practitioners.121
In breach of the Convention’s provisions, within weeks after the ILSA Report, RMT
sold 75% of the total quantity of mined Marthite to pharmaceutical companies for as much as
ten times its maximum permitted sale price, while traditional users suffered shortages and
price increases.122 This is in grave contrast to the object and purpose of the convention,
therefore, Agnostica was entitled to invoke the breach as a ground for termination.
2. Alternatively, Agnostica terminated the treaty in the light of fundamentally changed
circumstances
119
Gabčíkovo ¶15; Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v.Rwanda), Jurisdiction and Admissibility, I.C.J. 2006, 67
[Congo v. Rwanda]; Reservations to the Convention on Genocide, Advisory Opinion, I.C.J.
Reports 1951, 23 [Convention on Genocide]; ILC, Guide to Practice on Reservations to
Treaties (2011), Y.B.I.L.C., 2011, vol. II, Part Two. Draft Guideline 3.1.5.1.
120
Marthite Convention, art. 4 (d).
121
Corrections, ¶2.
122
Compromis, ¶13.
23
This Court has observed in Fisheries Jurisdiction that article 61 VCLT is declaratory
of customary international law.123 Article 61 strictly defines the cumulative conditions124
under which a change of circumstances may be invoked:
i) it must affect circumstances existing at the time of the conclusion of the treaty which have
not been foreseen by the parties at the moment of conclusion;
In casu, at the time of the conclusion of the Convention, Marthite was virtually
unknown outside the Thantonian Plate and it had significance only for the traditional users.125
Therefore, its medical use outside of the scope of traditional medicine had been unknown and
unpredictable for the parties.
ii) The change must be ‘fundamental’ and the effect of the change must radically transform
the extent of the obligations to be performed
In order for a change to be considered ‘fundamental’,126 it would suffice if “the value
to be gained by further performance is diminished”127 or if it results from changes in “the
availability of natural resources”.128
123
Fisheries Jurisdiction Case (United Kingdom v. Iceland), Merits, 1974 I.C.J., ¶40, ¶49
[Fisheries Jurisdiction].
124
Gabčíkovo, ¶104.
125
Marthite Convention, Preamble; Fisheries Jurisdiction, ¶3, ¶19; Gabčíkovo, ¶104.
126
Fisheries
Jurisdiction,
¶3,
19;
Fisheries
Jurisdiction (Federal
Germany v. Iceland), Merits, 1974 I.C.J., 49; Gabčíkovo ¶104.
127
DÖRR, 1089.
128
Ibid, 1081.
24
Republic
of
The newly discovered medical use of the Marthite does constitute a fundamental
change, because it radically transforms the extent of the obligations still to be performed. The
new medical use of the mineral changes its application and the main purpose of the
cooperation between Agnostica and Reverentia, namely respecting and honouring
Reverentia`s ancient traditions. If the Convention remains applicable Agnostica would be
obliged to provide its natural resource to RMT for limited distribution amongst traditional
practitioner with price restriction clauses of the Convention instead providing it in help of the
child saving activities. In the light of the newly discovered fact that high doses of Marthite
were reported to be over 90% effective in treating a broad range of previously untreatable
infant and early-childhood diseases, afflicted tens of thousands of children worldwide129 the
extent of the obligations of the Parties are certainly radically transformed.
iii) the circumstances’ existence must have constituted “an essential basis of the parties
consent to be bound by the treaty”
As the Travaux of Article 62 make clear, the rule exists to allow States to adjust their
treaty relations, when, what they have become obliged to do in the new circumstances is
''something essentially different from that originally undertaken", without essential fault on
their part.130 The P.C.I.J. has suggested that a particular matter could only be a "circumstance"
for this purpose if it was "in view of and because of the existence of a particular state of facts
that the treaty was originally concluded”.131
129
Compromis, ¶12.
130
Waldock II Report,18.
131
Free Zones of Upper Savoy and the District of Gex, Merits, 1932, P.C.I.J., Series A/B, No.
46, 156.
25
Similarly, the Court has recognized in Gabčíkovo that the expectations of the parties,
e.g. concerning the profitability of an agreed project, can form an essential basis of their
consent as well.132
According to the Preamble of the Marthite Convention, both parties recognized that
“Marthite is without significant commercial value outside its traditional uses”. 133 Moreover,
the main purpose for the conclusion of the treaty was “out of respect for traditional
Reverentian medicine and its users.”134 Taken in their entirety, the foregoing circumstances
form the essential basis of the consent of the Parties, therefore, their change makes article 26
operative.
In sum, all of the requirements for the existence of fundamental change of
circumstances are present in the case at hand. It is submitted that the fundamental change of
circumstances is due to: “fundamental change in the science underlying the treaty” 135 and the
the newly discovered medical uses of Marthite. As a consequence, the Marthite Convention
was lawfully terminated by Agnostica.
B. Alternatively, the Marthite Convention ceased to be in effect by 2 April 2012 since
Reverentia’s consent is invalidated on the ground of error
132
Gabčíkovo, ¶104.
133
Marthite Convention, Preamble, (e).
134
Compromis, ¶26.
135
Ibid, ¶14.
26
As was recognized in Mavrommatis , error affecting the essential basis of consent
applies to treaties.136 As further recognized by this Court in the Temple case137 Article 48 of
the VCLT codifies customary law.138 It entitles a State to invalidate its consent to be bound by
a treaty on the basis of an error relating “to a fact or situation”, which has been assumed to
exist at the time of conclusion and formed an essential basis of the State’s consent to be bound
by the treaty”.139 The fact or situation must appear objectively essential to both states140 and
the error must be closely related to the “the substance” or “roots” of the treaty.141 The
assessment of the sufficient proximity of the error is a matter of treaty interpretation.142
In casu, Agnostica concluded the Marthite Convention under the consideration that the
Marthite is virtually unknown outside the Thanatosian Plains143 and that it is without
significant value outside its traditional uses. This is clear from the Convention’s Preamble144,
136
Mavrommatis Jerusalem Concessions, 1925, P.C.I.J., Series A -No 5,,30–31
[‘Mavrommatis’].
137
Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. 1962, 25.
138
DÖRR, O., 833, Kasikili/Sedudu, Declaration of Judge Higgins, ¶1114; Judge Fleischhauer
Dissenting Оpinion, ¶1196, ¶1203.
139
Art.48 VCLT; DÖRR, 815.
140
VILLIGER, M., 608-609; Mavrommatis, ¶30-3.
141
DÖRR, 820.
142
Ibid.
143
Compromis, ¶9.
144
Marthite Convention, Preamble (e ).
27
which serves as an indication of the decisive factors for the consent of both parties.145
Therefore, the medical use of marthite constituted an essential condition for the conclusion of
the Convention. Consequently, the newly discovered medical use of the mineral146 provides a
ground for Agnostica to invoke Article 48 VCLT.
C. Agnotica lawfully declared the Marthite Convention to be out of effect
Under customary international law there are no specific procedural obligations
pertaining to the termination of treaties on the abovementioned grounds.147 In any event, the
Party which seeks to rely on a custom bears the burden of proving it148 therefore the burden is
on the Respondent to prove that Applicant failed to observe any procedural requirements.
For the sake of argument, it should be noted that the rule of pacta sunt servanda is
founded on the general principle of good faith.149 As stated in doctrine, this principle permits
145
Gabčíkovo ¶15; Congo v. Rwanda, Jurisdiction and Admissibility, ¶67; Convention on
Genocid,e 23.
145
146
147
Compromis, ¶9.
Ibid, ¶12.
DÖRR, 1133, Racke GmbH & Co. v. Hauptzollamt Mainz, E.C.R., I-3655, Case C-162/96
(1998) ¶58-60, [‘Racke’].
148
Asylum, 276.
149
Nuclear Tests (New Zealand v. France) 1974, ¶49; Nuclear Tests (Australia v. France)
1974, I.C.J., ¶46; Nuclear weapons, ¶102; Nicaragua, Preliminary objections 1984, ¶60;
Border and Transborder Armed Actions 1988, ¶94; Pulp Mills 2010, ¶ 145; Request for
interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections
1998, I.C.J., ¶ 38.
28
“unilateral suspension or termination of treaties” in exceptional situations.150 Similarly, the
European Court of Justice has concluded that the suspension of the cooperation agreement
between the European Economic Community and the Socialist Federal Republic of
Yugoslavia without prior notification or a waiting period was consistent with international
law.151
Moreover, As Judge Jessup pointed out in his separate opinion in the North See
Continental Case Shelf Cases152, when a notification is made, it is essential to consider the
response of the other party to a bilateral treaty in such situations, in view of the principle of
international cooperation in the exploitation of a natural resources.
Applicant has invoked the above grounds in good faith by first offering a mutually
beneficial settlement, reimbursement and compensation for Reverentia.153 Agnostica made all
efforts to bring the grounds enumerated above to the knowledge of Reverentia, while the latter
refused to cooperate. Consequently, Agnostica has lawfully invoked the termination of the
Marthite Convention.154
D. In any event, Agnostica did not breach that Convention
151
Racke, ¶58-60.
152
North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judge Jessup
Separate Opinion 1969, I.C.J., 83.
153
154
Compromis, ¶14.
Congo v. Rwanda ¶244, G.A. Res 1803, U.N. Doc. A/RES/1803 (1962); G.A. Res. 3201
(S-VI), U.N. Doc. A/RES/S-6/3201 (1974); G.A. Res. 3281, U.N. Doc. A/RES/29/3281
(1974).
29
Even if this Court finds that there are no grounds justifying the termination of the
Marthite Convention and it is still in force, Agnostica did not breach the Convention. The
Respondent may argue that the ban on transfer and sale of Marthite from Agnostica to
Reverentia incorporated in the Marthite Control Act155 violates article 6 of that Convention
which ensures the free movement of Marthite from Agnostica to Reverentia.
Contrariwise, it is submitted that a possible breach is justified due to a state of necessity.
As stated in Gabčíkovo, the principle of necessity is part of customary international
law under the condition that it can be invoked only “on an exceptional basis.”156
In order for a State to invoke necessity on a valid legal basis certain conditions should
be met. First, it should be the only way for the State to safeguard its essential interest against a
grave and imminent peril157 which should not be “merely apprehended or contingent”.158
Second, the act should not seriously impair an essential interest of another State towards
which the obligation exists.159 The first condition extends to particular interests of the State
and its people, as well as of the international community as a whole. 160 The peril has to be
155
Compromis, ¶22.
156
Gabčíkovo, ¶51.
157
Commentary to Art. 25 of the ILC Draft ASR, Y.B.I.L.C., 1975, II, ¶1(a) [Art. 25
Commentary].
158
Ibid, ¶16-17.
159
Art. 25, ¶1 (b), Art. 52 ARSIWA.
160
Art. 25 Commentary, ¶16-17.
30
objectively established and proximately imminent.161 However, the peril might appear in the
long term, if at the relevant time it is established that its occurrence is inevitable.162
Agnostica’s Parliament passed the MCA, banning the transfer of Marthite from
Agnostica to Reverentia as well as the unauthorized purchase, sale, or possession of
Marthite.163 Those measures were taken in the light of shortages in Marthite supply,164
crippled mining operations due to Reverentia’s removal of software and interrupted extraction
activities for week if not months.165 Those circumstances constitute grave and imminent peril
since they flagrantly endangered the supply of Marthite. In the context of its newly discovered
uses, in high doses the mineral is 90 % effective for the treatment of previously untreated
infant and early-childhood diseases. These disorders affect tens of thousands of children
worldwide.166 Consequently, the peril will affect an essential interest of the international
community as a whole. It should also be taken into account that the mining facilities are built
in the only areas in the world containing deposits of Marthite.167
Secondly, the ban did not seriously impair an essential interest of the other State. The
interest relied on must outweigh all other considerations, not merely from the point of view of
161
Ibid.
162
Gabčíkovo ¶54.
163
Compromis, ¶22.
164
Ibid., ¶13.
165
Ibid., ¶18.
166
Ibid., ¶13.
167
Ibid., ¶9.
31
the acting State but on a reasonable assessment of the competing interests.168 The foregoing
medical interests of the international community are in no way outweighed by the interest of
the traditional practitioners from Reverentia.
Overall, the wrongfulness Agnostica’s actions barring the free movement of Marthite
to Reverentia is precluded by necessity.
IV. REVERENTIA’S
REMOVAL OF THE SOFTWARE AT THE
MARTHITE
EXTRACTION
FACILITIES VIOLATED INTERNATIONAL LAW
Reverentia’s conduct with respect to the software removal is not in conformity with
international law and therefore it entails its international responsibility. Reverentia has acted
in violation of both its treaty obligations as well the rules arising from customary international
law.
A. Reverentia deprived Agnostica of its property.
States enjoy immunity with respect to its sovereign property and no other State should
take action that would affect its sovereign immunity.169 In the case at hand, the title to the
software installed at the mining facilities has been transferred.
1. Agnostica is the exclusive owner of the facilities under the Marthite Convention
International agreements between states can serve as a valid ground for transfer of
property. It is a general principle of law that treaty termination operates ex nunc170, therefore
even if it ceases to be in effect, the transfer of property remains valid.
168
Art. 25 Commentary, ¶17.
169
Germany v. Italy, ¶118 ;Convention on the Jurisdictional Immunities of States and Their
Property, U.N. Doc. A/RES/59/38 Annex (2004), article 5; SHAW, 709.
32
Under the Marthite Convention Agnostica owns the Marthite mining and miningsupport facilities within the territory of East Agnostica.171 This results into a valid transfer of
title to property, although there is no transfer of direct possession.172
2. The title to the software has been lawfully transferred to Agnostica as well
The software used for the Marthite extraction is considered part of the facilities. This
is grounded in the principle that when software is “pre-loaded”, it is transferred along with the
installation of which it forms part.173 If the transfer of property over the hardware is valid, it is
sufficient to justify the right to use the software as well.174 This renders the buyer the superior
possessory and proprietary right over the transferred software copy.175
170
DÖRR, 167, 735.
171
Art.1, 2, Marthite Convention.
172
§ 428 Austrian Civil Code; Art 924, Czech Republic Civil Code; German Civil Code §
930; Greek Civil Code Art 977; Netherlands Civil Code Art 3.115; Turkey Art 979 Civil
Code; SCHWENZER, IN., HACHEM, P., KEE, CH., GLOBAL SALES AND CONTRACT LAW, PART X
TRANSFER OF TITLE, 39 (2012).
173
Advent Systems Ltd v Unisys Corp, 925 F. 2d 670 at II; and St Albans DC v International
Computers [1997] F.S.R. 251 at 265 per Sir Iain Glidewell.
174
Eng St Albans City and District Council v International Computers Ltd [1996] 4 All ER
481 (QB); BENJAMIN’S SALE OF GOODS, FIRST SUPPLEMENT TO THE 8TH EDITION, BRIDGE M.,
14 (2012); Southwark LBC v IBM UK Ltd (2011) E.W.H.C., 549, (TCC) ¶97, The Hong Kong
Law Reform Commission Report, Contracts For The Supply Of Goods, LC Paper No.
CB(2)222/09-10
(2009)¶
2.92,
(http://www.legco.gov.hk/yr09-
10/english/panels/ajls/papers/aj1123cb2-222-e.pdf), SCHWENZER, IN., HACHEM, P., KEE, CH.,
GLOBAL SALES
AND
CONTRACT LAW, PART II AMBIT
OF
SALES LAW, 7 THE CONCEPT
OF
GOODS, ¶7.24 (2012); South Central Bell Telephone Co v Sidney J Barthelemy, Supreme
Court of Louisiana , 643 So. 2d 1240 at 1246 (La. 10/17/94), [hereinafter “South Central
Bell”]; Federal Court of Justice/Bundesgerichtshof, Germany, (8 ZR 306/95) (1996).
33
Additionally, when the software is designed for the specific needs of the customer, it is
considered part of the facilities, if its removal causes material damage to the host object.176
Agnostica was owner of the carrier of the software which has been created for the specific
purposes of those facilities, therefore, by removing the software, Reverentia has violated
Agnostica`s property rights.
B. Reverentia has no right to take countermeasures because the Marthite Convention
was not in effect after April 2012
Under international law countermeasures cannot be taken against a breach of
obligations arising under a treaty which is not in force.177
As argued above, the Marthite Convention was not in effect after April 2012. The removal of
the software occurred after this date, therefore it cannot be considered a lawful
countermeasure against Agnostica`s actions.
C. Countermeasures are not applicable since the conduct of Agnostica falls under the
regime of Treaty Law, not the Law of State responsibility
Doctrine and customary international law178 provide that the two regimes of a material
breach and state responsibility exist in parallel. Under the ARSIWA state responsibility does
not deal with the right of an injured state to terminate or suspend a treaty for a material
175
Princen Automatisering Oss B.V. v. Internationale Container Transport GmbH, [1996]
Court of Appeal, (770/95/HE), 72(The Netherlands); Green S., Saidov D., Software as Goods,
J. Bus. L. 161-181 (2007).
176
GOODE R. M., COMMERCIAL LAW 197 (3RD ED. 2004); South Central Bell ¶1246.
177
SHAW, 794.
178
DÖRR, 1242; VERHOEVEN J., THE LAW
OF
RESPONSIBILITY
AND THE
LAW
OF
TREATIES
JAMES CRAWFORD ET AL. (EDS.), THE LAW OF INTERNATIONAL RESPONSIBILITY 112 (2010).
34
IN
breach, as reflected in Art. 60 of the VCLT.179 The Special Rapporteur of ILC Mr. James
Crawford confirmed that it is impossible to apply circumstances precluding wrongfulness,
such as countermeasures, to state actions which concern the validity, termination or
suspension of the operation of a treaty.180
Reverentia removed the software, stating that this is only “until such time as Agnostica
agrees to respect its treaty obligations.”181 However, the actions of Agnostica concern the
termination of the treaty. The reason for its non-compliance is that Agnostica considers its
obligations under the Marthite Convention without any legal value. Since this concerns more
the general question of the validity and effect of those treaty obligations, the law of the
circumstances precluding wrongfulness of State acts is not applicable in the case at hand.
D. Alternatively, even if Reverentia can rely on countermeasures, its conditions are not
satisfied
If the Court finds that countermeasures apply within a treaty relationship, certain preconditions must be met.182 Reverentia fails to fulfill these requirements.
179
EVANS M. INTERNATIONAL LAW 197 (2010), 197; Commentary to Art. 56 of the ILC Draft
ASR, Y.B.I.L.C., 1975, II, (3), at 141.
180
Special
Rapporteur
James
Crawford,
Third
report
on
State
responsibility
A/CN.4/SER.A/2000/Add.1 (Part 1), 3; Commentary to Art. 56 of the ILC Draft ASR, YBILC,
1975, II, ¶3, at 141; Crawford, J., Olleson, S., The Exception of Non-Performance: Links
between the Law of Treaties and the Law of State Responsibility (2001) 21 A.Y.I.L., 60.
181
Compromis, ¶17.
182
Gabčíkovo ¶83; Nicaragua, ¶249; Case concerning the Air Service Agreement of 27 March
1946 between the United States of America and France, United Nations, R.I.A.A., vol. XVIII,
(1978) [‘Air Service Agreement’]¶443; Art 47-50, ARSIWA,; ELAGAB O. Y.THE LEGALITY OF
NON-FORCIBLE COUNTER-MEASURES IN INTERNATIONAL LAW 227–241 (1988); Mexico – Tax
35
1. The procedural requirements were not observed
Under customary international law183, countermeasures must be “preceded by a
demand by the State that the responsible State comply with its obligations” and “an offer to
negotiate.”184 In casu, Reverentia did not inform Agnostica prior to the software removal. The
President instructed the Reverentian engineers “also to remove any software installed by RMT
at the Marthite mining facilities”185, without informing Agnostica.186 Moreover, Reverentia
rejected Agnostica`s offer for negotiations187, showing lack of intention to cooperate.
Therefore, Reverentia fails to meet the procedural requirement under Art. 52 ARSIWA, which
renders its actions unlawful.
2. The countermeasure was not proportionate
Proportionality is concerned with the relationship between the internationally wrongful
act and the countermeasure.188 Both case law189 and customary law190 emphasize that
Measures on Soft Drinks and Other Beverages, Report of the Panel, WTO Doc.
WT/DS308/R, (2005), ¶5.54–55.
183
Air Service Agreement, ¶85-87; Gabčíkovo ¶84, ¶47; Rainbow Warrior case (New
Zealand, France), Award of 30 April 1990, U.N.R.I.A.A. vol. XX 217 (1990).
184
Art 52, ARSIWA;
185
Compromis, ¶17.
186
Compromis, ¶18.
187
188
Compromis, ¶17.
ILC Report on the work of its thirty-first session 14 May-3 August 1979, Y.B.I.L.C. vol.II
(Part Two) (1979), p. 118, fn. 595; United States—Transitional Safeguard Measure on
Combed Cotton Yarn from Pakistan, WTO Appellate Body, WT/DS192/AB/R, (2001), ¶120;
Agreement of 27 March 1946 (United States v. France) Case 54 I. L. R., 304 (1946).
36
countermeasures must be equal to the injury suffered, be assessed not only in quantitive terms,
but considering also the gravity of the internationally wrongful act and the importance of the
rights in question.191
The measure should be “necessary and reasonably connected” with the purpose of
countermeasures192 and should be sufficient to induce the responsible state to comply with its
obligations, without having a punitive effect.193 However, proportionality requires not only
189
Naulilaa (Responsibility of Germany for damage caused in the Portuguese colonies in the
south of Africa), UNRIAA, vol. II, 1011 (1928); Air Services Agreement ¶83; Gabčíkovo ¶85,
¶87; United States—Import Measures on Certain Products From the European Communities,
WTO Panel Report, WT/DS165/R, ¶ 6.23, (2000); United States—Transitional Safeguard
Measure on Combed Cotton Yarn from Pakistan, WTO Appellate Body, WT/DS192/AB/R,
¶120 (2001).
190
191
Art. 51, ARSIWA.
Gabčíkovo¶83, 85, 87; United States—Definitive Safeguard Measures on Imports of
Circular Welded Carbon Quality Line Pipe from Korea, WTO Appellate Body Report,
WT/DS202/AB/R, .¶259 (2002); Air Service Agreement ¶83.
192
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States, Judgment, ICSID Tribunal, Case No. ARB(AF)/04/05, 21 (2007).
¶153; ARSIWA, Art. 49; Materials on the responsibility of states for internationally wrongful
acts, U. N. L.S., ST/LEG/SER B/25, 326 (2012).
193
Materials on the responsibility of states for internationally wrongful acts, U. N. L.S.,
ST/LEG/SER B/25, 326 (2012); ILC Report on the work of its fifty-third session (23 April–1
June and 2 July–10 August 2001), U.N. Doc. A/56/10, Y.B.I.L.C, Volume II (Part Two)
(2001), p. 135.; United States—Subsidies on Upland Cotton, Recourse to Arbitration by the
United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO,
Case No. WT/DS267/ARB/1, (2009) ¶4.113.
37
employing the means appropriate to the aim chosen, but implies an assessment of the
appropriateness of the aim itself, considering the structure and content of the breached rule.194
Reverentia explained that the reason behind the software removal has been mainly not
to allow Agnostica “be able to profit from that breach”.195 However, in reality, the sabotage`s
effects go well beyond this, since they also affect the rights of the people with medical needs
for Marthite, namely the traditional users and the suffering children.196 The significantly
decreased Marthite levels have caused difficulties for Agnostica to provide life-saving
Marthite “to suffering children of the world”, making it necessary to impose restrictive
measures on the use and possession of the mineral.197
Reverentia`s actions do not meet the proportionality requirement for the validity of
countermeasures under customary international law and thus its wrongfulness is not
precluded.
194
Gabčíkovo, ¶7.
195
Compromis, ¶18.
196
Ibid., ¶12.
197
Ibid., ¶22.
38
PRAYER FOR RELIEF
The Federal Republic of Agnostica respectfully requests the Honourable Court to
adjudge and declare that:
I.
Reverentia’s encouragement of East Agnostica’s referendum violated Agnostica’s
territorial integrity, the principle of non-intervention, and the United Nations Charter
generally;
II.
The purported secession and subsequent annexation of East Agnostica are illegal and
without effect, and therefore East Agnostica remains part of the territory of the Federal
Republic of Agnostica;
III.
The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,
Agnostica breached the Convention;
IV.
Reverentia’s removal of the software from the Marthite extraction facilities violated
international law.
Respectfully submitted,
Agents for the Applicant
39